abstract. The constitutional tort is one of the most important mechanisms for vindicating constitutional rights. But the doctrine governing such claims is in disarray. A plaintiff suing a state official under § 1983 or a federal officer under Bivens faces a series of hurdles to obtain relief. The Supreme Court has crafted absolute- and qualified-immunity rules based on supposed analogies to common-law immunities. It has required plaintiffs alleging constitutional violations also to show that they can satisfy certain elements of common-law claims. And the Court has limited damages for constitutional torts to the categories available at common law. Together, these doctrines deny or circumscribe remedies for constitutional wrongs.

These downstream doctrinal errors flow from an upstream conceptual confusion about constitutional rights. Since the second half of the twentieth century, the Supreme Court has been stuck between two competing ways of thinking about constitutional rights. The first framework—the “nullification” framework—is one in which the common law or state law imposes duties on officers, and the Constitution operates only to nullify governmental efforts to suspend, modify, or abolish those preexisting rights. The second framework—that of “constitutional duties”—is one in which the Constitution directly imposes duties on officers that are independent of underlying state law and that necessitate distinct remedies.

The tension between those two frameworks recurs throughout constitutional-tort law, including disputes about the best interpretation of § 1983; the enforceability of the dormant Commerce Clause; the meaning of the First and Eighth Amendments; the recognition of absolute- and qualified-immunity doctrines; the elements of constitutional-tort claims; and the calculation of damages. The question is what to do about it. Embracing the framework of constitutional duties would require reconsidering how courts assess the availability of constitutional-tort claims, the elements of those claims, the scope of official immunities, and the calculation of damages. To state the answer in deceptively simple terms: all these questions should turn on the substance of constitutional rights and not on the scope of the common law. Further, there are no coherent alternatives to embracing constitutional duties.

A doctrinal regime that attempts to repudiate constitutional duties and restore the nullification framework would produce a distorted simulacrum of the original system. The Feature concludes by suggesting that unpacking the two competing frameworks of constitutional rights illuminates a series of contested issues throughout constitutional law—including the exclusionary rule, sovereign immunity, and structural constitutional challenges—and raises deeper questions about the normative justifications for constitutional torts, including the unsettling possibility that constitutional torts should not be refined but radically revised and perhaps even repudiated.

author. Associate Professor of Law, Yale Law School. Thanks to Joel Alicea, Will Baude, Rishabh Bhandari, Sam Bray, Eric Brooks, Charlie Capps, Bill Eskridge, Sherif Girgis, Joshua Kleinfeld, Richard Fallon, Matteo Godi, John C.P. Goldberg, Tara Leigh Grove, Daryl Levinson, Tyler Lindley, Jim Pfander, Haley Proctor, Sam Lewis, Jack Preis, Claire Priest, Ketan Ramakrishnan, David Schleicher, Yishai Schwartz, and John Witt for perceptive comments on or conversations about early drafts. Thanks also to interlocutors at the Catholic University of America, University of Chicago Law School, Duke University School of Law, University of Florida Levin College of Law, Georgetown University Law Center, Harvard Law School, Marquette University Law School, University of Minnesota Law School, New York University School of Law, University of North Carolina School of Law, Pepperdine Caruso School of Law, and Yale Law School. Thanks also to Jacqueline Huang, Darius Namazi, and the members of the Yale Law Journal for their suggestions and meticulous editorial assistance.

Introduction

One of the most important mechanisms to vindicate constitutional rights today is the constitutional tort. Whether brought under 42 U.S.C. § 1983 or Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,1 a constitutional tort involves a claim that a government official has taken some action that violates a constitutional right held by the plaintiff. If a constitutional tort is established, the court orders the officer to pay money damages—at least if no immunity doctrine precludes relief. If the tort is imminent but not complete, prospective relief may be available in the form of an injunction.2 For many completed constitutional wrongs, the constitutional tort may be the plaintiff’s only mechanism to obtain relief tailored to the wrong.3

But the doctrine governing such claims has been criticized for its constellation of legal rules that foreclose or diminish relief. Plaintiffs alleging constitutional violations must sometimes satisfy the elements of common-law claims.4 Even if a plaintiff establishes a constitutional tort, qualified immunity precludes relief if the defendant-official has not violated clearly established federal law.5 And after the merits issues, damages awards are limited to what would be available in a common-law action.6 In addition, with respect to claims against federal officials, limitations on implied causes of action have rendered the remedy announced in Bivens essentially nonexistent.7 All of these doctrines eliminate or narrow the remedies available for those who suffer constitutional violations.8

These limitations flow from an upstream conceptual confusion about the nature of constitutional rights. Since the second half of the twentieth century, the Supreme Court has failed to distinguish between two competing ways of thinking about constitutional rights: a “nullification” framework and a “constitutional duties” framework.

In the nullification framework, subconstitutional law (meaning common law or state law and potentially federal law)9 imposes duties on state or federal officers, and the Constitution operates only to nullify certain governmental efforts to suspend, modify, or abolish those duties. The structure of claims under the nullification framework is most evident in the ancestor to the modern constitutional tort: the common-law claim for damages against government officers.10 These common-law constitutional-tort claims were available at the Founding11 and in theory remain available today.12 When a plaintiff asserted such a common-law constitutional-tort claim, the constitutional issue entered the analysis three layers deep. Only after the plaintiff demonstrated a prima facie case and the officer responded that the official nature of the acts defeated the common-law claim could the plaintiff reply that the Constitution voided, or “nullified,” that official justification.13 The key point here is not the procedural posture in which the constitutional issue arises. The point is that in this framework, the Constitution operates only to preserve that preexisting subconstitutional right. Therefore, the scope of the constitutional right—and the remedy for its violation—derives from that subconstitutional law.

By contrast, the second framework of constitutional rights—that of constitutional duties—is one in which the Constitution directly imposes duties on officers. Those duties are independent of the underlying subconstitutional law and, accordingly, necessitate independent remedies. This framework is most evident in modern suits under § 1983 against “every person” who causes the “deprivation” of “any rights, privileges, or immunities secured by the Constitution.”14 The Court has interpreted this provision to create a cause of action to vindicate constitutional violations. The same framework is evident in cases brought under Bivens. There, the Court reasoned that the Fourth Amendment is “an independent limitation upon the exercise of federal power,” not just “a limitation on federal defenses to a state law claim,”15 and provides “an independent claim both necessary and sufficient to make out the plaintiff’s cause of action.”16

The critical point is that what is colloquially called a constitutional “right” actually includes two fundamentally different legal interests: (1) a “right” that imposes a corresponding duty on government officials that originates in the Constitution itself and pertains to the conduct of officials, and (2) a “right” that nullifies certain alterations to preexisting subconstitutional law. To be sure, it is well known that common-law constitutional torts differ procedurally from those brought under § 1983 or Bivens.17 And some scholars have even recognized the conceptual difference between a Constitution that operates through nullification rules and a Constitution that imposes affirmative duties on governmental actors irrespective of subconstitutional law.18 What has not been explored is how the conflict between these two models of constitutional rights is pervasive in constitutional-tort law, or how the Supreme Court’s vacillation between, or ambivalence about, these two models has caused downstream confusion throughout the law.

After identifying and defining the two competing models of constitutional rights (constitutional duties and constitutional nullification rules),19 I identify seven areas in which competition between the two frameworks shapes the Court’s analysis or drives disagreement on the Court.20 Among other things, disagreement about the structure of constitutional rights is the core dispute in Monroe v. Pape.21The majority (Justice Douglas) and the dissent (Justice Frankfurter) disagree on whether § 1983 provides a remedy for actions unauthorized by state law. Vacillation between the frameworks across the Court’s history also explains its conflicting holdings on whether the dormant Commerce Clause is enforceable under § 1983 (or its jurisdictional analogue). The Court’s embrace of constitutional duties explains the holding in Estelle v. Gamble that the Eighth Amendment constrains prison officials,22 but skepticism of such duties motivates the major doctrinal critique of Estelle. The development of the constitutional-duties framework explains the significant expansion of First Amendment free-speech and free-exercise rights for government employees and students, even as skepticism about constitutional duties in the Establishment Clause drives efforts to pare back certain claims. The Court’s failure to embrace one of the two frameworks has transsubstantive implications for the contours of constitutional-tort claims, including the elements of those claims, the availability of official immunities, and the measure of damages.

But there is a coherent doctrinal alternative to the current mishmash.23 The basic structure of modern constitutional torts assumes constitutional duties, and the flaws within the doctrine flow from the failure to adopt that framework in full. Instead, courts should wholly embrace the framework of constitutional duties—at least if the coherence of this doctrinal regime is worth attaining. If they were to embrace that framework, courts would have to revisit their approach to determining whether § 1983 or Bivens supports a claim, what the elements of such a claim should be, whether and which immunity doctrines are available, and how to calculate damages.

A coherent alternative framework would work as follows. At the outset, in determining whether a plaintiff has a constitutional claim, the question would not be simply whether something called a “constitutional right” has been violated, but whether the Constitution imposes a duty on this particular officer to take (or refrain from taking) this particular action against this particular plaintiff. On this view, courts would confront the possibility that some constitutional provisions (for example, the dormant Commerce Clause or the Appointments Clause) might impose nullification rules but not duty rules.24 And certain clauses might impose duties on some officers but not others—whether because a provision imposes duties on only some kinds of officers (for example, executive but not judicial) or because it imposes duties at one level of government but not another (for example, state but not federal). If a particular officer has no duty, the constitutional-tort claim should fail.

But if the Constitution does impose a duty on the official, then the contours of the claim should depend on constitutional meaning and not on the details of the common law. First, the elements of the claim should flow from the Constitution and not from the most analogous common-law claims. Second, immunities should be tailored to the specific constitutional right at issue and not imposed across the board because of a faulty analogy to common-law immunities as they existed in 1871. And third, the measure of damages should be what is necessary to redress the violation of the constitutional right, not just the damages that would have been available for other common-law torts. Analogies to common-law claims will sometimes make sense, but only to the extent that the constitutional tort is a species of tort—and only so far as both the conceptual assumptions of tort law and the purposes of the particular common-law tort can be transposed into the constitutional context.

But why embrace constitutional duties instead of restoring the nullification framework?25 Incoherence arising out of competition between two frameworks might be resolved by repudiating either competitor while embracing the other. Restoring the nullification framework, however, would present intractable problems. Even if one sets aside the practical problem that repudiating the constitutional-duty framework would radically rework modern doctrine, restoring the nullification framework would still fail because of otherconceptual developments. In particular, the decision in Erie Railroad Co. v. Tompkins26precludes a return to a nullification framework because nullification rules protecting general-law claims (pre-Erie) are quite different from nullification rules protecting state-law claims (post-Erie). The post-Erie nullification framework would be a distorted simulacrum of the pre-Erie nullification framework. There is no going back to the way things were. The question is how things should change.

The argument for fully adopting the constitutional-duties framework has implications beyond constitutional-tort law. The same upstream conceptual confusion about the structure of constitutional rights recurs throughout constitutional litigation more broadly. The development of (and retreat from) the Fourth Amendment exclusionary rule reflects the Court’s incomplete embrace of the constitutional-duties framework. The competition between the two frameworks also explains the bizarre structure of modern sovereign-immunity jurisprudence. Further, the expanding availability of injunctive relief for violations of structural constitutional provisions, like the Appointments Clause, seems to assume both that structural constitutional provisions impose duties and that the breach of such duties requires a remedy. Those assumptions, however, conflict with the analysis in recent decisions narrowing the implied cause of action in Bivens. Uncovering the conceptual structure of constitutional-tort law thus points the way to reexamining whole domains of constitutional law.

A few final notes on methodology. The argument begins with a critical but sympathetic reconstruction of the relevant rules of constitutional law. This approach attempts to understand the basic commitments of modern constitutional-tort law and to determine what those commitments require. To that end, the Feature identifies the concept of the constitutional duty, traces that concept through constitutional-tort doctrine, and teases out the implications of a system that accepts constitutional duties. The implicit assumption of this argument is that the concepts at work in legal doctrine have concrete consequences for the outcomes of cases, and those concepts must be understood to make sense of judicial decisions. The argument then transitions from its descriptive stage of critical reconstruction to a prescriptive stage of internalist reform, suggesting ways to reshape constitutional-tort doctrine to fit the basic principles already present in the doctrine. The implicit methodological commitment is that a coherent doctrinal regime is worth attaining (perhaps) for its own sake and (at least) for the secondary values of predictability, consistency, and fairness.27

But attention to the principles of the doctrinal regime raises deeper, potentially unsettling questions about the normative justifications for constitutional torts. Reconstructing the doctrine reveals the principles implicit within it, and the internalist project reconstructs the doctrinal regime to fully implement those animating legal principles. The very process of articulation and implementation, however, subjects those principles to rational reflection, reconsideration, and perhaps even repudiation. To put the point in concrete terms, this Feature eventually raises the question whether the private-law concept of the “tort” belongs in the domain of constitutional law at all, and indeed whether the enterprise of adjudicating constitutional torts should be radically reconsidered—or perhaps even abandoned entirely.